Monday, November 30, 2009

There was a very powerful story in the Chronicle of Higher Education issue dated November 25, 2009, under Advice, "Mental Illness in Academe," by Elyn R. Saks. The title is rather bland, actually, and does not begin to describe the dynamite within the short essay. She begins by recalling a psychotic break she endured while teaching an upper level class in law school in September, 1991. Professor Saks was diagnosed ten years earlier with chronic paranoid schizophrenia with acute exacerbation, a devastating mental illness, which would prevent most people from any kind of productive work life. Instead, she is justifiably proud:

That has not turned out to be my life. I am the Orrin B. Evans professor of law, psychology, and psychiatry and the behavioral sciences at the University of Southern California's law school; adjunct professor of psychiatry at the University of California at San Diego's medical school; and an assistant faculty member at the New Center for Psychoanalysis, where I am also a research clinical associate.

My schizophrenia has not gone away. I still become psychotic, as happened in class that day in 1991. Today my symptoms, while not as severe, still recur and I struggle to stay in the world, so to speak, doing my work. I have written about my illness in a memoir and much of the narrative takes place after I had accepted a tenure-track appointment at USC.

Barring a medical breakthrough of Nobel-Prize-winning proportions, I will never fully recover from schizophrenia. I will remain on antipsychotic medication and in talk therapy for the rest of my life. Yet I have learned to manage my illness. How? Do I have any words of advice for others who have a serious mental illness and are on the tenure track?

The first question you must ask yourself is whether to tell your chair and dean. I can think of arguments both in favor of that, and against.

One of the pluses would be the psychological benefits of not having a secret and being able to be open. More practically you might be able to get extra support, or formal accommodations under the Americans With Disabilities Act (ADA). You would serve as a model for other academics in your department and your students.

There are, of course, real pitfalls to telling, too. There is a tremendous stigma, still, around mental illness. People may believe, consciously or not, that you are unreliable or even dangerous, and they may fear you. They may think you can't do the work or your scholarship isn't good, even if it is very good. That may not be intentional on their part but can nonetheless have a big impact on your work life and your prospects for tenure.

My own tack was not to tell, except for my closest friends on the faculty. Even that limited disclosure served me well when I became ill—there were people I could turn to. And so a colleague, Ed, helped get me home and connected with my psychiatrist after my experience teaching class while psychotic. But I didn't want my situation to be known broadly. I work on a wonderful faculty, so it would most likely have worked out well anyway. But I didn't want to risk it.

I feel somewhat bad suggesting that not telling is the better course. Recall the scene in the movie Milk, when Harvey Milk, running for city council, says words to the effect of "I am running for government as a gay man, and I am proud." Having schizophrenia is not something I am proud of, but I am less ashamed than I used to be. Yet am I, in effect, telling people with mental illness to hide—to not be proud? Perhaps the message should be that, given the immense stigma, hiding is the prudent course but one should recognize there is no shame in having a mental illness.

Beyond that question, what steps can academics with mental illnesses take to make life easier for themselves? Some are steps that everyone with mental illness should take. First, learn about the illness you have—the typical signs, symptoms, and course. Many excellent sources are available. You may want to start with the Diagnostic and Statistical Manual of Mental Disorders, DSM-IV-TR. Psychiatric textbooks, e.g., Kaplan and Sadock's, can be helpful. I have also discovered excellent lay accounts of mental illness.

Second, understand how your illness affects you. What are your triggers? What are your early warning signs? What can you do to minimize your symptoms when they worsen—e.g., call your therapist, increase your medication, listen to music, exercise? Try to devise some techniques for your own situation. Some colleagues and I are studying how a group of high-functioning people with schizophrenia manage their symptoms. You are in the best position to determine what works for you.

Put a good treatment team in place. You need a therapist you can trust and can turn to in times of difficulty. Does he or she respond if you call in crisis? The same is true of a psychopharmacologist. Make friends and family members part of your team.

Sometimes your team can see early warning signs before you can. For instance, my closest friend, Steve, and my husband, Will, often identify when I am slipping. Will says I become quieter in a particular way that signals all is not well. It's a blessing to have such people in your life. Seek them out.

Structure your professional life in a way that works for you. Schedule your courses carefully. If your meds make you tired in the morning, try not to teach morning classes. Try to choose courses that you like to teach—you will do a better job and feel less stressed.

Two other things have been important to me professionally. First, I work hard. I go in seven days a week because I know I may have down times. (I also love what I do, so working is not a chore.)

Second, I try to maintain a professional demeanor. How does a person who becomes out of touch with reality do that? My approach has always been to ask myself, even in those moments where I think I have a special insight on the truth, whether others will think my beliefs are crazy. When I recognize that they will, I simply don't express my views, because I don't want to be thought crazy. My motivation to appear sane leads me to self-censor. If I am so tortured by my beliefs that I know I will not be able to keep quiet, I withdraw—I simply go home.

To circle back to the issue of disclosure and accommodations, many of the things you can do to help navigate the tenure process are things you can arrange without formally disclosing your illness.

For instance, scheduling courses is something that I imagine most departments would want to accommodate to the extent they are able. True, in an unfriendly department, you may need to invoke the ADA. If you need more time on the tenure clock, and your department is not well-disposed to offer it, the ADA might also come to your rescue.

All of that said, the balance of factors for and against telling may change once you do get tenure. Being open about your illness at that point exposes you to less risk and may have the advantages mentioned earlier—e.g. not having a secret, being able to serve as a role model for others in academe.

We also need to put a face on mental illness. Being open about one's own illness will probably do more good than all the laws we can pass.

My own "outing" of myself was a bit of a risk, but has turned out well. I am glad and relieved I no longer have to hide. And my story seems to be meaningful to people—it has helped people understand mental illness more and perhaps has led to a decrease in the stigma. I was lucky in that my law school accommodated my teaching needs without my having to invoke the ADA. My colleagues are supportive, and I no longer feel ashamed about needing their help.

The suggestions I have made here are all straightforward. There is, unfortunately, little engagement with the issue of mental illness and academic employment. I began a campus support group for professors with mental-health issues; one person showed up for the meeting. I don't know whether people fear confidentiality won't be maintained, are too busy, or, as professors, tend to "fly solo." In any case, the effort failed.

I hope that this article will help start a much-needed conversation about mental illness in higher education. (Indeed, it might be worthwhile to start an online support group for professors with mental illness. If you are interested, please contact me.)

Perhaps most important: Seek help when you need it. Mental illness is a no-fault disease like any other, such as cancer or diabetes. Help is available, but you need to ask for it. Don't let the threat of stigma deter you. You shouldn't have to suffer.

And you shouldn't allow mental illness to stand in the way of the wonderful contributions you are poised to make to your students and to your field.

Sunday, November 29, 2009

The Chronicle of Higher Education ran an article November 22 (I'm catching up on my reading!), Libraries Explore Big Ideas to Overcome Small Budgets, by Jennifer Howard. To read the article online, you need a password, but if you have access to the paper in print, it can be found in the News section. I'll reproduce snippets here, but it's a dandy article and I recommend reading it in full, if you can, by following the link, or picking up the paper.

At many university libraries, the toxic economy has eaten away at staffing levels and at collections-and-acquisitions budgets. It has deflated endowments and disrupted plans to build new facilities and upgrade equipment.

But in response, librarians are doing more than tightening their belts. Some see the crisis as a chance to change the way they do business. It has spurred efforts to dream up ambitious solutions to big problems, such as collaborative storage networks that let libraries share the costs of housing valuable but burdensome print collections. The money pinch has also heightened the appeal of open-access content.

The worst of times, some say, may help make the path to better times clearer. "We joke here, and we've heard it at other places, 'Don't let a good crisis go to waste,'" says Lori A. Goetsch, dean of libraries at Kansas State University and president of the Association of College and Research Libraries. "It has maybe moved things forward at a pace that we might not have been able to otherwise."

To find out just how hard library budgets have been hit, the Association of Research Libraries, which represents 124 institutions in North America, began a survey of its members in October. Complete results will probably not be available for a couple of months, according to Charles B. Lowry, the association's executive director. From the reports he has heard so far, though, the pain is widespread. "Acquisitions budgets are taking a big hit this year, too, along with staff and operations," Mr. Lowry said.

The article details some pretty painful cuts at a number of university libraries of different size, with the expectation that there will be more cuts in the next academic year. However, the article does go on, inspiringly, to talk about how some libraries are coping in very creative ways with the cuts, sometimes to staff lines, and sometimes to acquisitions lines, sometimes to both. Some of the ideas are not going to be accessible to libraries at small or less well-funded, or well-connected schools. But some of the ideas could work anywhere.

To get a sense of how Berkeley's library makes do with less, The Chronicle spoke with Chuck Eckman, associate university librarian and director of collections. He describes a three-pronged strategy, the first part of which is to look for sources of revenue other than state money. (The library has its own development office, and raised more than $10-million last year, according to Mr. Leonard.) Berkeley's library now covers 15 to 18 percent of its collection-development expenditures with money from private sources, Mr. Eckman says. "We're hoping to up that over time."

Second is to beef up longstanding partnerships with other libraries in the University of California system and with nearby Stanford University. For instance, Berkeley is expanding the Direct Borrow Program, through which faculty members and students can get material from partner libraries within 24 hours, into subject areas it has not included before. "We're kind of dividing up the world," Mr. Eckman says of the partner libraries. "The goal here is to ensure that as budgets decline, we don't cancel the same thing."

Third is to figure out which scholarly journals and other materials are truly must-keep items. Over two years, the Berkeley library will cut its books-and-journals budget by 14 percent. Deciding what to ax is the job of 50 "selectors," subject-area librarians familiar with the journals and monographs used by researchers in those areas. The selectors talk directly with departments to find out what they can do without, Mr. Eckman says. "They're best positioned to make the trade-off. We give them flexibility to do that."

Subject librarians on individual campuses such as Berkeley's do not bear these burdens alone. Ivy Anderson is director of collection development at the California Digital Library, part of the California system's office of the president. Among other responsibilities, Ms. Anderson's office negotiates systemwide library licenses with publishers for access to journal databases and other big-ticket items. It provides what she calls "evidence-based" analysis to help libraries throughout the system decide what's still worth paying for and how much it ought to cost.

With journals, for instance, the analysis takes into account how much use they get, how much they cost relative to other publishers' offerings, and their impact factors, a measure of how often articles from a particular journal are cited in a given period of time. That information goes to librarians throughout the system, who use it to make decisions about what is most worth keeping. (The process is complex. Mr. Leonard, at Berkeley, describes the hierarchies of libraries and library-related committees within the system as "fiendishly complicated.")

Having such evidence in hand makes painful cuts easier to sell to researchers anxious about giving up certain journals or monograph series. Still, "the kinds of analyses that one can do are imperfect," Ms. Anderson says. Not every journal has an impact factor, for instance, and a journal that has comparatively small usage numbers may still be highly influential in its field. "So we do rely on the campus experts to make final judgments," she says. "At the end of the day, there's only so much money, and we have to understand where we can make sacrifices." The question is not whether there will be pain but who will feel it most sharply.

One approach that can help lessen the pain, and that increasingly aligns with researchers' changing habits, is to include more open-access content in collections—a cheaper approach than buying content from publishers. The University of California has also stepped up its efforts to get researchers to take advantage of open-access publishing opportunities, Ms. Anderson says. The California system has its own open-access publishing platform, eScholarship, run by the California Digital Library.The Print Squeeze

The print collections of libraries, however, present yet another challenge. Space for them, and money to maintain them, is becoming very tight. To solve this problem, research libraries are considering collaborations on a whole new level.

Working together is not a novel idea in the library world. Many libraries already belong to consortia that coordinate interlibrary loan programs and use their collective buying power to cut better deals with publishers. The Pennsylvania Academic Library Consortium Inc., or Palci, for example, includes 76 libraries in Pennsylvania, New Jersey, and West Virginia; and the Greater Western Library Alliance represents 32 research libraries from 17 states in the West and the Midwest.

Such consortia are shaping up to be the foundation of ambitious networks of print repositories. Several have embraced the idea of developing shared print collections, according to Ms. Anderson, and the California libraries are part of a group exploring the idea of a Western Region Storage Trust. or WEST, "a shared print repository infrastructure" serving the Western region of the country, she says. The idea just received a planning grant from the Andrew W. Mellon Foundation.

If libraries have a guarantee that, say, a print copy of a certain journal is safely archived and accessible elsewhere, they can spend money on other things and avoid duplicating collections. Imagine a supersized interlibrary loan program with an overarching archival philosophy.

"All of these projects involve a level of collaboration across institutions that's rather unprecedented," Ms. Anderson says. If it goes well, WEST will outgrow its regional boundaries. "We see this as the beginning of a network that may be a more national collaboration," Ms. Anderson says.

The Center for Research Libraries, an independent association of academic and research libraries, hopes to coordinate what could become a national or North American strategy. In July it gathered a number of U.S. library consortia and the Ontario Council of University Libraries to talk about collective print-management strategies, reports Bernard F. Reilly, the center's president. "We promised to come up with a plan for pulling these efforts together," Mr. Reilly says, referring to WEST and some of the consortium-level strategies under discussion. "People are doing terrific work at the regional level. That's the only reason it's feasible at the national level."

The center intends to present the outlines of such a plan at the American Library Association's midwinter meeting in January 2010. Mr. Reilly does not underestimate the magnitude of the challenge. There's "the tendency to want to have things physically close," he says.

That problem will ease in time, Mr. Reilly believes, as researchers become more comfortable with the idea that they can get their hands on the material even if it isn't all on the campus-library shelves. "The solution is to get information out to the researchers about how these collections will be taken care of and how available they will be," Mr. Reilly says.

Mr. Eckman, of Berkeley, believes that WEST has "great potential," but he cautions that moving quickly presents risks as well as possible rewards. He points out that librarians who must make immediate hard choices "don't always have the time to work through the ambitious agenda that WEST might have set for itself."

The current downturn "can make creative responses and collective responses more possible," Mr. Eckman says. "It could also force more rash decisions."

A very interesting article about some very interesting developments! My library is involved in the NELLCO (New England Law Library Consortium) as a founding member. And we are involved in an experimental effort locally in Boston to see if the Boston law libraries can evolve a cooperative collection development (or even de-selection) agreement. We don't know if we will be able to make it work, but as the article notes, having the material close at hand seems to be a comfort for the scholars (and maybe the librarians as well). We will see. It's exciting to work on these projects, but a little un-nerving, too. You need to be thinking some years down the way, and what you are setting up for your users, binding your library to. Rash decisions are extremely possible. Not only that, but they may have unintended consequences. One of the comments on the article at Chronicle online:

Consortial purchasing and sharing of resources make a lot of sense from a librarian's point of view. But it poses an extra challenge for us scholarly publishers. If only 10 consortia are buying our journals or monographs instead of 100 separate institutions, the fixed costs of publication do not change and those have to be covered by far fewer sales, which translates into much higher prices for the 10 copies--or, at some point of diminishing returns, cessation of the publication altogether. Thus this strategy, which may work for the short term, has long-term consequences for the vitality of scholarly communication that need to be carefully considered. Promoting more "open access" publishing is fine, too, up to a point, but OA journals and books cost money to produce and someone has to pay those costs. OA may simply result in a shifting of the financial burden within universities from libraries to other units on campuses, like academic departments that will have to pay author fees for their faculty to publish in OA journals. OA has benefits for end users and may well be worth the price, but there is still a price and it remains to be seen whether the costs overall for OA will be less than for TA (toll-access) publishing. --- Sandy Thatcher, Penn State University Press

The New York Times ran an editorial on November 25 featuring a speech by Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall to the City Bar of New York. It will not come as a surprise to many readers of OOTJ that state courts have had their budgets slashed, but the editorial does an admirable job of surveying the nation, drawing a grim picture, indeed, of what state budget cuts have done. The courts, say Justice Marshall, are at the "tipping point of dysfunction." The editorial continues:

in too many cases, the cuts are already impeding core court functions, forcing court closures, shortened court hours and a tangible narrowing of access to justice.

New Hampshire, for example, suspended civil and criminal jury trials in 8 of 10 county courts for one month each between last December and June. In California, state courthouses are closed for business on the third Wednesday of every month. Iowa is planning to close all state courts for several days before the state’s fiscal year ends on June 30.

More than two dozen states have imposed court hiring freezes, and 11 states have put staff on unpaid furloughs of varying length, according to the National Center for State Courts. Court staff, including clerks, court interpreters and security personnel, have been eliminated or reduced. In a financially driven loosening of security in Maine, for instance, magnetic security machines at local courthouses are no longer regularly manned. In Alabama, says the immediate past president of the Alabama Bar Association, Mark White, fiscally driven “compromises in service and security are creating a situation ripe for disaster.”

In Georgia, it can take 60 days to hold a hearing in a temporary custody case that used to take just a few weeks. In other states as well, spending cuts have led to fewer court dates available for hearing and trials, creating a growing backlog of cases. With priority given to serious criminal matters, there is a looming threat to the civil justice system, and its ability to vindicate people’s rights, and to foster economic growth and stability by enforcing business contracts in a timely manner.

The brunt of the budget cuts has fallen on the high-volume courts hearing family and juvenile matters, misdemeanors and small-claims disputes, notes the American Bar Association. Some of society’s most vulnerable people, including battered women, abused and neglected children and victims of vandalism and petty theft, turn to these courts for protection and justice.

There are factors apart from budget problems undermining the vitality of state courts, not least the advent of expensive judicial election and retention campaigns fueled by special interest money. And no one, including Chief Justice Marshall, suggests that state courts should be spared from having to share the burden at a time when cuts to health care and public education are under consideration in nearly every jurisdiction.

But, at some point, slashing state court financing jeopardizes something beyond basic fairness, public safety and even the rule of law. It weakens democracy itself.

In a press release dated July, 7, 2009, the National Center for State Courts issued the results of a survey showing that all states' and territories' 2010 budgets slashed the budgets for courts. Court administrators were responding by considering hiring freezes, consolidation, changes in venue and jurisdiction rules, and use of technology to increase efficiency.

The survey of 54 states and territories found that for Fiscal Year 2010, courts in 27 states have had their budgets reduced, and 12 additional states are anticipating budgets cuts in coming weeks as their Legislatures finalize 2010 state budgets. Ten state court systems have had their budgets reduced by at least 5 percent. To review the survey results state, go to www.ncsconline.org/wc/budget/activities.asp.

“The national recession is having a profound impact on how Americans gain access to justice,” said Stephanie Cole, Administrative Director of the Alaska State Courts and president of COSCA.

With state revenues in a free fall, the NCSC and COSCA conducted the survey to learn how state courts are coping with, and planning for, the potential of the most severe budget cuts in decades.

Budget cuts are taking shape in a variety of ways:

* 28 state courts have imposed hiring freezes. 13 state courts have frozen salaries * Seven states have encouraged judges and staff to accept salary reductions – or have imposed salary reductions * Six states have mandated furloughs of court staff * Six states have reduced court hours.

A glimpse of what courts across the country are experiencing: In Delaware courts placed a hiring freeze on all positions except security; Florida courts have laid off 280 employees, out of its 3,100 person workforce; Minnesota has cut court hours and public counters are closed a half day each week in some districts; Iowa is considering reducing administrative districts, merging internal court operations and creating more flexibility in allocating judges; in Nevada the Governor has recommended cutting employee salaries by 6 percent, eliminating merit increases and requiring all employees take 12 furlough days a year.

But of course, as in Massachusetts, state budgets are being trimmed continually through the year, as governors see revenues in freefall during a profound recession. So searching the Internet for the phrase turns up many news stories around the country of new budget cuts and crises in state courts resulting from the new budget cuts. I thought the Times editorial was a powerful statement. It's a terrible thing to choose between fabulously deserving and needy administrative agencies in budget allocations. But this was a very powerful statement. Of course, libraries are another important group that are more needed by the population at large as the economy tanks. And all the social service agencies can make the same claims, I suppose, as well as police, fire and hospital, ambulance, basic infrastructure maintenance.... I guess it all goes on and on. I am glad I am not in charge of budget allocation in any state!

This decoration of Themis holding the scales of justice is from the FBI website at http://www.fbi.gov/publications/leb/2005/june2005/page30.jpg

Monday, November 23, 2009

Well, it's not really like in Charles Dickens' A Christmas Carol, and Tiny Tim is certainly different from tinyThom.As, but I just like the name so much, I couldn't resist.

tinyThom.as is a new feature from Library of Congress. If, like me, you have ever tried to create a link to Thomas, their wonderful database of Congressional bills and public laws, you have been frustrated to discover that Thomas cannot create a permanent link. It's a relational database and your link is only temporary to the document. You can only give your reader a link to the database and a search to perform to retrieve the same document. tinyThom.as fixes that. (though why they didn't just create a permalink feature, I don't know). Here is the explanation given:

tinyThom.as is an online tool for preserving the webpages served up by http://thomas.loc.gov for documents related to the U.S. Congress. tinyThom.as generates full-size permanent URLs for THOMAS pages, and also generates short URLs which redirect to those long URLs in order to make them easy to pass around via Twitter, Email, Facebook, etc. We've also provided a public API so that you can generate tinyThom.as URLs in your web applications.

When you send tinyThom.as a URL, it quickly loads the page from the Library of Congress (before the link expires) and then examines the content of the page to determine what search criteria it can use to bring you back to that same page. For example, for a Bill Summary and Status page (example), it finds the bill number and the congressional session, and then generates a URL which searches for just that information. At the same time, it makes a tinyThom.as URL, like http://tinythom.as/0fjZ which you can use to pass the link around without dealing with the long THOMAS URLs.

Congressional Record pages, like this page. (We hope to extend the code to allow it to bring you directly to the remarks in the record, rather than just the list of all remarks on a given page of the Record.)

Some Committee Reports, like this page. Some committee reports are formatted differently, and those don't work yet.

In the future we hope to also process additional content from Thomas; please drop a line at with your requests or if you find a link that doesn't work right.

Integration with OpenCongress and GovTrack

OpenCongress.org and GovTrack.us provide ways for users to discuss legislation, look up bill text and status, learn more about their members of Congress, etc. tinyThom.as makes it easy to find the pages on these sites which correspond to bills in Thomas:

* Put "/oc" at the end of a tinyThom.as URL, like this: http://tinythom.as/8p9O/oc and tinyThom.as will direct that link to the page on OpenCongress, if it exists. * Put "/gt" at the end of a tinyThom.as URL, like this: http://tinythom.as/8p9O/gt and tinyThom.as will direct that link to the page on GovTrack, if it exists.

In both cases, if the bill doesn't have a good page on the other site (or it's a tinyThom.as link pointing at something other than a bill), it'll just take you straight to Thomas.

About the code

tinyThom.as was written mostly by Asa Hopkins, an open source developer and political activist, with help from others (thanks to the open source code). It is heavily based on the open source code written by Robby Russell for http://rubyurl.com, and the code for tinyThom.as is also open source and available on Github.

Thanks to Chris Griffin for providing the design of RubyURL that tinyThom.as is based on.

The good folks at Stanford Law Library have put together an independent survey on Pacer, which you do NOT have to have a Pacer account to take. They explain:

The Administrative Office of the U.S. Courts is in the midst of an assessment of PACER. This PACER User Satisfaction Survey will only take a few minutes. We plan to submit the responses we receive below to the A.O. for their analysis and improvement of PACER.

Sunday, November 22, 2009

Rich Leiter twittered Xyggy legal, a new beta search engine for finding similar cases on the web. Xyggy offers more than just general legal searches, so you can reach Xyggy Patent, which covers patents from 1976 onwards. Xyggy Articles searches through archived news articles of the New York Times from 1987 - 2007.

Xyggy Legal covers: Supreme Court decisions in US. Reports volumes 1 - 544, Federal Circuit Courts of Appeal in F.2d, volumes 178 - 999, and F.3d vol. 1 - 491They state that they are in beta, and that they hope to complete the currently spotty coverage of recent years as they go along.

Xyggy's home page explains the Item search as follows

the fundamental idea:

Xyggy’s paradigm for search is based on the fundamental idea that search should be item-based not just text-basedIn everyday life, we constantly search for and find things (items). Xyggy is bringing item search to our digital lives.

Text search is fine, to a point, but we live in a world of items not just keywords. Item search provides substantial advantages and additional information over keyword search. Item search is a more natural way of finding things.

Why query with one or more items?A query with more than one item allows Xyggy to discover what the query items have in common and returns better results.

I believe they are searching not only the text but also the metadata. They have carefully selected a few databases that are made available by the government. They have also purchased a dataset from the New York Times. All three already have metadata added. Xyggy searches these in addition to the full text of the documents. This is a very interesting development. I will be interested in testing what the engine can do and will be interested in hearing back from other librarians and other users. What an interesting way to advance! We have Google Scholar's legal button and now Xyggy! Xyggy Legal went live with a demo on November 16!

The decoration is the comic strip character Ziggy, by Tom Wilson. Tip of the OOTJ hat to Rich Leiter!

Saturday, November 21, 2009

Massachusetts is one of only six states without a public law school. I suspect it is a combination of the fact that there are so very many private law schools here, and that (at least some of them) have lobbied so assiduously against the idea every time the issue has come up. I work at one of the schools that certainly has lobbied against the idea. And I will try to present an even-handed report here despite that fact.

The Boston Globe just reported that a panel of the University of Massachusetts trustees approved the first step of a plan to acquire an unaccredited private law school, Southern New England School of Law, and recapitalize it as a public law school. This plan has been proposed several times over several years. Southern New England (SNESL)is not a bad law school, but it is seriously under-capitalized, and I think this is the most serious barrier to its being accredited by the American Bar Association. Despite huge efforts by various creative and innovative librarians, the library, as well as the rest of the school, requires a big infusion of cash to meet ABA standards, if what I hear is correct. ﻿According to the Globe article, the current plan promises that the new arrangement will not be a financial drain on the University of Massachusetts, or cost any taxpayer money. The graduates of SNESL had the second-lowest graduation rate for first time takers on the last Massachusetts bar exam. This is actually not a terrible indictment because, as a law school not accredited by the A.B.A., they are not usually getting the best students -- the best law students are tending to choose the accredited law schools first. So, take that figure with a grain of salt.

Southern New England, a 235-student school that lacks national accreditation, is donating its campus and assets to the state, and its officials hope UMass will be able to take the school to a higher level of achievement.

With UMass backing, the law school would accept students starting in fall 2010. It would be able to increase its enrollment to 559 by 2017; generate more revenue to invest in its students, faculty, and library; and raise graduates’ low passing rates on the state bar exam - issues it needs to address to receive American Bar Association accreditation, UMass-Dartmouth’s chancellor, Jean MacCormack, said.

MacCormack told the board the acquisition would not cost taxpayers any money, a concern raised by opponents. Investments made in the school would come from tuition and fees, she said. According to financial projections, UMass-Dartmouth would also remit $1.3 million in tuition to the state by 2017 and build a $10.2 million cash reserve for the campus by then.

“Here’s an institution that for argument’s sake doesn’t meet all of the standards of our university,’’ trustee Victor Woolridge said. “This is an opportunity. You buy low and grow.’’

A similar plan was shot down four years ago by the Massachusetts Board of Higher Education after UMass trustees approved it. One difference in the current effort is that the public law school would return a portion of tuition revenue to the state. (snip)

The UMass board’s committee on administration and finance will take up the issue Dec. 2. The entire board will vote Dec. 10, before the issue goes to the Board of Higher Education.

The most recent proposal looked as though it was going to sink again. ﻿A completely disinterested blogger at AbovetheLaw wrote that he opposed the idea of a public law school in Massachusetts, not for any of the reasons raised in the 2004 debates, but because the employment market for lawyers was already super-saturated in the state, and what the hell were we thinking about, starting up a new law school, anyway? This seemed to be a pretty strong argument, and was carrying the day for a while. But then, the Chronicle of Higher Education came out with its annual report on the compensation of university presidents. As last year, the president of Suffolk University, David Sargent, shows up with the highest compensation in Boston, (this year, he dropped to the second highest in the country). But even better, the university trustees voted to extend the 78-year-old president's contract for another five years. The story ran as a local story, in the B section, and was commented on. But the Globe ran it a second time, two weeks later on its front page, with a beautiful photograph from inside the fifth floor of my library (how did they get it?!)(and doubly interesting, the online link only shows the headline and graphics that went with the story, not the story itself or the photograph or the comments). That was the only beautiful thing about the article. The rest was a detailed, outwardly even-handed coverage that went on for 3 pages about Sargent's pay and new contract, looking at the history, the explanations offered by the Trustees, and tearing those apart. They also interviewed disaffected alumni. I happen to know that they interviewed happy alumni as well, but did not include those quotations in the article. The article ran both in print and online. The online version of course, makes it easy to add comments and BOY! did they get comments. Many of the comments were from more disaffected alumni. I cannot help but think that the timing and prominent placement the second article had a profound effect on the vote. But perhaps I am displaying wishful thinking. Maybe the deciding factor is the promise that the new public law school won't cost either the University of Massachusetts or taxpayers anything.

I have to say I do have mixed feelings... The Globe article linked above promises a basic tuition of $23,500, which would be cut in half for students who would commit to public service jobs for four years post-graduation. That would be a wonderful boon to law students who now stagger under huge debt loads. It would allow people to pursue public service jobs in a way they really struggle with now. Even with the new student loan provisions with caps on repayments based on income and ending repayment after so many years, with shorter time spans for public servants and a lower percent of income as well, it can be a huge struggle to take those public service jobs. And I'm enormously frustrated with the trustees and the president at my university who seem to have the public relations sensitivity of oatmeal.

But I certainly do not believe that upgrading Southern New England School of Law is going to be no cost to either U. Mass or to the taxpayers of Massachusetts.

Thursday, November 19, 2009

See here to see a fascinating post on the Google Blog. The Google engineers are pioneering a new radio button on Google Scholar that allows the user to search by legal topics or by case names. They include a rather graceful statement about "standing on the shoulder of giants:"

We would like to take this opportunity to acknowledge the work of several pioneers, who have worked on making it possible for an average citizen to educate herself about the laws of the land: Tom Bruce (Cornell LII), Jerry Dupont (LLMC), Graham Greenleaf and Andrew Mowbray (AustLII), Carl Malamud (Public.Resource.Org), Daniel Poulin (LexUM), Tim Stanley (Justia), Joe Ury (BAILII), Tim Wu (AltLaw) and many others. It is an honor to follow in their footsteps. We would also like to acknowledge the judges who have built this cathedral of justice brick by brick and have tried to make it accessible to the rest of us. We hope Google Scholar will help all of us stand on the shoulders of these giants.

Tip of the OOTJ hat to my wonderful colleague, Suffolk Professor Marie Ashe, who e-mailed this link to me!

Monday, November 16, 2009

The Wall Street Journal reports that the Authors Guild, the Association of American Publishers and Google have re-submitted their revised Settlement Agreement for Google Books to U.S. District Judge Denny Chin in New York. The Department of Justice, which had responded to the original Settlement with a list of concerns in a Statement of Interest, is reviewing the new revision.

The revised pact submitted late Friday would allow Google to distribute millions of digital books online, but would cut the number of works covered by the settlement by at least half by removing millions of foreign works.

Yet the issue of whether it is fair for the settlement to let Google distribute books whose legal rights owners haven't been identified—known as orphan works—is still drawing criticism.

People familiar with the matter say the Justice Department remains concerned that the fact the settlement gives Google immunity from lawsuits related to orphan works may be anticompetitive. The department is expected to file its reaction to the modified agreement by early next year.

A spokeswoman for the Justice Department said the department is reviewing the revised agreement and its investigation into the settlement is "ongoing."

Google, the Authors Guild and the Association of American Publishers designed the revised settlement to mollify the Justice Department and other critics who blasted the original settlement as overly broad and anticompetitive. Under that settlement, announced in Oct. 2008, Google would gain permission to distribute and sell millions of digital books online in exchange for sharing revenue with rights holders.

The new settlement keeps the same structure, but makes a number of changes, including adding more pricing options to address concerns about potential price-fixing and clarifying what sort of services Google can offer related to digital books.

It also aims to address some of the concerns about orphan works by establishing an independent fiduciary to look out for the interests of those rights holders and specifying that revenue collected from those works won't flow back to other rights holders—a move aimed at addressing criticism from the Justice Department.

The modifications were defended by Richard Sarnoff, co-chairman of Bertelsmann Inc., a holding company of publisher Bertelsmann AG, who negotiated the settlement. He said the parties addressed the competitive concerns around orphans by writing into the settlement that Google must act as a reseller of those works to any third party. Google had previously announced its intention to do so.

"This settlement won't determine the digital future of publishing," Mr. Sarnoff said. "It's about reclaiming publishing's past in a way that would be impossible to do in the U.S. in any other manner. And it will benefit scholars, readers, and the rights holders of these books."

But critics say the move doesn't resolve one of their main concerns: that the agreement gives Google exclusive immunity from lawsuits from unknown rights holders.

The notion that the company could distribute those works without the threat of getting sued by rights holders has drawn heat from a broad group of critics, including Google competitors such as Amazon.com Inc., which argue it would be risky to invest in scanning books without a promise of similar immunity.

"I don't see how this fixes anything about orphans," said Gary Reback, an antitrust lawyer who co-founded a group of companies and organizations including Amazon and Microsoft Corp. that is fighting the settlement, in an interview Sunday.

the article, by Jessica E. Vascellar and Jeffrey A. Trachtenberg, notes that the parties hope to set a hearing on the settlement sometime in February, now. The tone taken in the WSJ article actually seems much harsher on the Settlement than the Justice comments warranted. The original tone of the Justice comments were actually very supportive of the GoogleBooks Project, and simply raised issues with the Settlement. The Electronic Frontier Foundation (EFF) offers a very nice Readers Guide to the Google Book Settlement, currently dated October 31, 2009, with legal analysis by their senior staff attorney, Fred Von Lohmann. But, to their credit, they also include a link to New York Law School's Prof. James Grimmelmann's analysis of the Settlement. They also include varying opinions and commentary from librarians Paul Courant at the Univerisity of Michigan, who basically supports the Project and Prof. Siva Vaidhyanathan, who opposes it. We can hope that the nice folks at EFF links will update their commentary, but you can certainly link to the original materials, which show you the changes in color.

My husband pointed out this article in yesterday's New York Times. There are many teachers in his family, and he thought it was interesting to learn that

[T]thousands of teachers are cashing in on a commodity they used to give away, selling lesson plans online for exercises ... While some of this extra money is going to buy books and classroom supplies in a time of tight budgets, the new teacher-entrepreneurs are also spending it on dinners, mortgage payments, credit card bills, vacation travel and even home renovation, leading some school officials to raise questions over who owns material developed for public school classrooms.

There are philosophical issues as well as ownership issues. One professor of education quoted in the article feels that "online selling cheapens what teachers do and undermines efforts to build sites where educators freely exchange ideas and lesson plans."

The article doesn't explicitly raise the issue of work for hire, but I think it should have been mentioned. Teachers are employees, and one could argue that the work they do in the course of their employment belongs to their employers. The Copyright Office has a useful circular on work for hire, but it doesn't mention teachers, and one can also refer to section 101 of the Copyright Act for a definition of work for hire. It's a slippery concept, however, and the law is by no means settled. I have always believed that I hold the copyright in the original materials I have created for my Advanced Legal Research course (topic outlines, exercises, etc.). I am happy to share my materials with others, but I like to be credited. Does my university believe that it holds the copyright to my course materials? I don't know, because the question has never come up. When I started teaching, I solicited syllabi from other legal research instructors and built upon them. Would I have paid for them? I'm not sure, but it wasn't an option in those days. One of my colleagues suggested that she could envision a situation where one had to subscribe to get updated course materials, but where older materials were available for free.

During my Advanced Legal Research class this morning, we were talking about the Congressional Record and the fact that members of Congress are allowed to edit and add to their remarks before they are published. One of the students mentioned that she had read a story in the New York Times over the weekend which described lobbyists for Genentech who managed to get statements they had written "printed in the Congressional Record under the names of different members of Congress. ... Genentech ... estimates that 42 House members picked up some of its talking points--22 Republicans and 20 Democrats ..." This is why, "[i]n the official record of the historic House debate on overhauling health care, the speeches of many lawmakers echo with similarities." According to the Times,

Members of Congress submit statements for publication in the Congressional Record all the time, often with a decorous request to 'revise and extend my remarks.' It is unusual for so many revisions and extensions to match up word for word. It is even more unusual to find clear evidence that the statements originated with lobbyists.

... The statements were not intended to change the bill, which was not open for much amendment during the debate. They were meant to show bipartisan support for certain provisions, even though the vote on passage generally followed party lines.

Some members of Congress used the language provided by the lobbyists verbatim, while others "tweaked" the language to fit their personal style. It is interesting to note that some of these Representatives had received campaign contributions from Genentech, which also had hosted fundraisers for them.

This seems like a particularly egregious example of the influence that lobbyists have in the legislative process. I'm happy to report that my students found the story somewhat shocking, coming as it did so recently after we'd discussed the legislative process. The story underscored why it is so difficult to make any meaningful institutional change in this country.

Friday, November 13, 2009

The Wired Campus feature of the Chronicle of Higher Education dated November 9, 2009 carries a story about Penn State requiring faculty advisors to appear in Second Life to advise students. Penn State has had a campus presence in the virtual world of Second Life for some time, and decided to offer advising there, in addition (according to a comment at the online article) to office hours, e-mail, phone and Skype. Faculty advisors are required to offer a minimum of two hours a week in Second Life and are given training in the online game. They are allowed to choose their own avatar names. It was not clear from the article how fanciful the avatar faculty may be. Second Life avatars do not, of course, have to reflect the gender, height, weight or ethnicity of the person behind the electronic face. But they may also appear as giant rabbits, may sport wings, or become more exotic still. Clothing, of course, can also be negotiable, but one supposes that is still somewhat bound by standards of propriety for advisors during office hours. Many law librarians are Second Lifers. It's a fun way to interact. The Chronicle article reports that faculty members do enjoy their time once they get used to Second Life.

The picture is my own avatar from Second Life, Boptunia Woodget. I am not spending much time there these days, but she is still there, in suspended animation.

Thursday, November 12, 2009

The Boston Globe included a story yesterday about the University of Wisconsin-Madison and Syracuse University in New York stating that they would not consider roll-outs of Kindle e-readers until Amazon addresses problems with accessibility for blind users. Both schools bought some Kindles this fall on trial, but were appalled to discover that the Kindle's read-aloud feature would almost certainly require assistance from a sighted companion. The National Federation of the Blind released a statement about the two universities' decisions, based on their nondiscrimination policies. The most disappointing aspect is that:

Amazon spokesman Drew Herdener said many visually impaired customers have asked Amazon to make the Kindle easier to navigate. The company is working on it, he said.

According to the National Federation of the Blind, there are about 1.3 million legally blind people in the U.S. Many more people have other disabilities such as dyslexia that make it difficult to read.

The Kindle could be promising for the visually impaired because of its read-aloud feature, which utters text in a robotic-sounding voice. For blind students in particular, the Kindle could be an improvement over existing studying techniques -- such as using audio books or scanning books page by page into a computer so character-recognition software can translate it for a text-to-speech program.

But activating the Kindle's audio feature probably requires a sighted helper, because the step involves manipulating buttons and navigating choices in menus that appear on the Kindle's screen.

The federation says the device should be able to speak the menu choices as well.

(from the Globe article) This statement from Amazon does not seem to have any urgency about it. If you go to the National Federation of the Blind website above, you may note that they do have a handheld Kurzweil reader for print material, which is interesting and must be very helpful. It seems to be in test mode, still, but the website says it will cost about the same as many flat screen televisions. It will be able:

• The Reader reads most printed documents, address labels, package information, and instructions with ease. It offers readers a choice of hearing a full page, or just a few lines for identification purposes.

• The Reader can store thousands of printed pages with easily obtainable extra memory and users can transfer files to their desktops and laptop computers or Braille notetakers.

• The Reader reads documents from computers or other devices.

• The Reader has a headphone jack so users don't have to disturb others in close proximity.

• The Reader costs about the same as many flat screen televisions today, yet has the power to revolutionize a person's life.

• Sales will be handled by K-NFB Reading Technology, Inc., and its dealer network. To locate your local dealer, call (877) 547-1500 or visit http://www.knfbreader.com/.

The read-aloud feature of the Kindle was initially disabled at the insistence of the Author's Guild which saw it as potentially eating into their profitable second-market for audio books. But the robotic voice which reads for Kindle is no challenge for the professional actors who usually read the audio books, and the Author's Guild eventually caved under intense public pressure.

Librarians and activists for the visually impaired, were very disappointed, though to discover that such users would have great difficulty in managing a Kindle reader alone. I have to say that libraries and educational organizations that want to supply some kind of reader for blind and vision-impaired students or other users, might really do better to consider supplying or subsidizing the new Kurzweil hand held reader instead!

One thing that folks who have not dealt with blind "readers" who listen to books may not realize is that these folks "speed listen." Just as an experienced visual reader reads much faster than a new reader, people who listen to their reading material get so they can speed listen. My mother did recording of textbooks on request for the University of Kentucky visually impaired students for a number of years. And this is one of the things that she learned about the ways her tapes were used. Imagine if you had to listen to an entire casebook read aloud at the usual speed -- it would take FOREVER! So of course, the student learns to speed listen. I don't know if the Kindle has a function for speed listening. I suspect that the Kurzweil reader DOES, because that is the population it deals with. Just one more tiny detail that a visually impaired "reader" would care passionately about in the "reader" they would choose. Besides, who would choose a robotic voice if they didn't have to?

He might never have been caught but for the diligence of Ken Sanders. A ponytailed Utah bookseller whose shop was a countercultural hangout, Sanders found a new calling as an amateur detective when he volunteered to serve as security chair for the Antiquarian Booksellers Association of America. As Sanders uncovered the patterns of thievery that eventually led him to Gilkey, he became as absorbed in the the hunt for his nemesis as he would have been in pursuit of a rare 17th century withcraft tome, or a signed copy of “Finnegan’s Wake.” (snip)

Bartlett will appear in Boston at the Antiquarian Book Fair at Hynes Convention Center on Nov. 15. She spoke with us by phone from her home in San Francisco.

IDEAS: You’ve said you love reading but don’t share the collecting impulse yourself. Why do people dedicate their lives to hunting down rare books?

BARTLETT: The collector has this very deep appreciation for the book as a physical object that’s mixed with that other love that the rest of us have. And it seems to be almost something you’re born with. With lots of the collectors I met, it seemed like it’s an unidentified genetic trait. Because a lot of them grew up around collectors, their parents were collectors or their uncle was, and it just seems to be almost innate, like a musical ear.

IDEAS: For many collectors, you write, the goal is “to stumble upon a book whose scarcity or beauty or history or provenance is even more seductive than the story printed between its covers.” (snip)

IDEAS: Like legitimate collectors, Gilkey’s motivated by a passion for books. What drove him to steal?

BARTLETT: I think that in many ways Gilkey is a loner, an outsider... He wanted the world to see him as a cultured erudite gentleman who revered literature. But there’s a lot of anger alongside that also; I think he’s frustrated that he’s not yet seen that way. And he has gone to prison repeatedly, I think five or six times at least for this. And what happens when he gets caught and goes to prison is, he wants revenge…. like OK, now I’m getting even, now I’m getting the book collection I deserve.

IDEAS: You write that “for Gilkey . . . having not paid for books... adds even more to their allure.”

That little, telling piece out of the larger interview really grabbed my attention. The combination of the passion for collection, the passion for rare books, manuscripts, incunabulae, etc, and the self-justification that leads to theft.... Oh, my! And there are more people out there like this than I had guessed. Ken Sanders has nabbed more people than just Gilkey. If you travel to the International League of Antiquarian Booksellers' news site here, you find a rather long and unwieldy page. But if you use control F, and search for "Ken Sanders," you will find a number of fascinating investigations he has carried out. I believe the "news," is fairly current -- September - October, 2009, as far as I can tell. The links out from the story about Sanders, though, are broken, sadly. However, Sanders is a fascinating character, not only a rare books dealer, but a rare books detective. Law enforcement agencies rarely are able to spend much time or manpower on rare book thefts, however valuable. And someone who recognizes the item and understands the world is a uniquely valuable investigator. Somebody who pursues the investigation with bulldog tenacity is even more valuable!

The rare book world, after all, is where Sanders has spent his life since he began collecting as a teenager.

There is another world, too, in which Sanders has grown adept at manoeuvring, a world filled with shadowy figures and deceit. In this world, Sanders is not merely a rare books dealer, but a rare books detective. As chair of the security committee for the Antiquarian Booksellers' Association of America (ABAA), Sanders spends between ten and fifteen hours a week poring over reports of theft and fraud, sending alerts to ABAA members and, as the situation warrants, conducting his own investigations. His tenure as security chair for the ABAA-a volunteer position-began in 1999 and has coincided with the rapid growth of Internet commerce and of its spawn, electronic fraud, to which the bookselling community has been especially susceptible.

Book dealers who have been defrauded know to turn to Sanders, as law enforcement agencies like the FBI and Interpol almost never take an interest in the jurisdictional complexity of tracking down rare-book thieves. Using a stolen credit card number and just enough literary knowledge, a typical thief can convince an unsuspecting dealer to ship a valuable first edition across several time zones. Rare books are small, easily portable, not overtly suspicious and, thanks to Internet auction sites like eBay, easily converted into cash. No one keeps track of total losses, but the most notorious thieves working the trade have made off with as much as $100,000 US each in books-taking care never to "spend" more than about $5,000 at a time so as to avoid rousing suspicion.

Reports of theft and fraud have shaken up the rare book trade, to the chagrin of many. "It's been a trusting, gentle business for most of its existence," says Sanders, "a handshake kind of business." Rooted deep within the culture of bookselling is a certain reticence, an essential genteelness that Sanders, with his hard-charging efforts, seems to have endangered. Booksellers seem dismissive of any talk about theft and scams and consider it a serious impediment to business. Steven Temple, security chair for the International League of Antiquarian Booksellers, doesn't think that theft is necessarily increasing at all, only that it is now more commonly reported.

Sanders' investigations, however, have undeniably led to results. He has shut down gangs in Belgrade operating with stolen credit card numbers and eBay accounts-though not before they managed to scam dealers of about $40,000 in rare books. Sanders has also disrupted gangs of credit-card fraudsters based in Nigeria and Ghana, baiting them by accepting orders and then shutting down their stolen card numbers. Sanders takes pleasure in asking for another card, and then another, until the fraudsters realize he's on to their schemes.

Last year Sanders helped nab book thief John Charles Gilkey, who may have stolen as much as $100,000 in books. For months Gilkey-who was "brazen as hell," says Sanders-placed orders with booksellers over the phone, often chatting up dealers before using a stolen credit card to make the purchase. Before the charge could be disputed, Gilkey would call back to mention that a cousin or nephew was conveniently in town and able to drop by the bookshop. Then he or his accomplice-identified afterwards as his father-would leave with the book in hand. Gilkey later switched methods and asked booksellers to send books by overnight mail to hotels, where he had reserved a room with a different stolen credit card.

When Gilkey attempted to scam Ken Lopez, president of the ABAA, Lopez and Sanders worked with police in San Jose to set up a sting. Lopez, a Massachusetts-based dealer, let Gilkey go through with an order for a first edition of John Steinbeck's The Grapes of Wrath. Though the asking price was $6,500, Gilkey actually talked Lopez down to a price of $5,850. He also asked Lopez to send the book overnight to the upscale Westin Hotel in Palo Alto. When Gilkey, dressed in rumpled slacks and a baseball cap, arrived to pick up the package, police were on the scene to apprehend him. After posting a $15,000 bail, Gilkey disappeared, eluding authorities for weeks until he was eventually caught in another sting. He is now serving a three-year sentence in California.

Why does Sanders pursue these white-collar criminals so relentlessly? "I have an innate sense of fairness," he says. His daughter Melissa agrees: "He takes [theft] so personally, not only when it happens to our store, but to our colleagues."

(from the International League of Antiquarian Booksellers' news website). There is a lot more there, including information on a far more dangerous-sounding thief, "...David George Holt, aka Frederik Buwe, aka Professor Karl Fisher. Holt, a sixty-two-year-old Illinois native turned globetrotter, actually has many more aliases, all allegedly used in email and Internet scams that have plagued book dealers since the mid-1990s." Holt has apparently threatened Sanders, leaving messages on the voice mail. He is a strong suspect in the murder of New York bookseller Svetlana Aronov. Holt certainly stole about $100,000 in U.S. Savings bonds from his grandmother, and abandoned his wife and five children in the suburbs of Milwaukee to flee to New Zealand in 1991. He has stolen thousands of dollars worth of rare books, apparently from booksellers, rather than libraries. He is wanted on charges of securities fraud as well. The nastiness of this particular book thief is rather out of the ordinary. Most book thieves tend to be more like the book collectors they prey upon; scholarly, bookish, literate, though, on both the cases of Holt and of Gilkey, they certainly have a streak of sociopathic egotism that makes it seem just fine to them to crush others under foot as long as they get their way. I enjoyed the survey review written by Julia Keller of the Chicago Tribune, partly because it recalled past books about the mania of book collecting (Nicholas A. Basbanes' A Gentle Madness: Bibliophiles, Bibliomanes, and the Eternal Passion for Books (1995), which also includes the story of Stephen Blumberg, a truly large scale book thief. Blumberg, unlike the thieves mentioned earlier, preyed largely on university libraries and museums. The report I read totaled the final count at "-more than 20,000 rare books and 10,000 manuscripts from 140 or more universities in 45 states and Canada. (One report said they were taken from 327 libraries and museums." (Conservation Online's Abbey Newsletter, vol. 15, no. 7, Nov., 1991, quoting the OCLC Newsletter, July/Aug. 199 1, p. 10).

And here is the Desire of the Book part... What draws these thieves, or for that matter, the rare book collectors, sellers, and curators? What is it that makes these thieves decide to steal a book, when books cannot be fenced, as Julia Keller, the Chicago Trib reviewer so succinctly puts it? This is not a matter of making money, merely. The author of the Man Who Loved Books Too Much...

Bartlett spends a great deal of time interviewing Gilkey, both in and out of prison, recording his equivocation and his loneliness and his pathetic self-denial. "The Man Who Loved Books Too Much" ends up underlining an important sociological truth: For all of our excitement about new media and innovative forms of storytelling, when it comes to signifying high culture, books still rule. Books are symbols of erudition and sophistication. If you want people to think you're intelligent, you install bookshelves in your home and you fill them up. Gilkey, Bartlett notes, was obsessed with "the image of an English gentleman with a grand library." He wants books because, he tells her, " 'There's that sense of admiration you're gonna get from other people.' "

This, I guess, is why you still see all the photographs of law professors and lawyers taken in front of shelves of law books. They may not use the sets of reporters any more. They may not even own the set at the firm... but they want the photo taken in front of the National Reporter set, because of what it signifies: scholarliness, wisdom, lawyerliness.

The image is courtesy of the City College of San Francisco English Major website at http://fog.ccsf.cc.ca.us/~cgreger/Images/Scribe.jpg

Friday, November 06, 2009

This editorial, published in today's Boston Globe, caught my eye because my husband is currently serving on a federal grand juror here in New York, where cell phones and other electronic devices are banned from the courthouse. The editorial discusses the growing phenomenon of "tweeting, texting, and obsessive e-mail checking" which now threatens the jury system. "Increasingly, courts have had to warn jurors that blogging or searching the Web during trial jeopardizes the very foundations of the judicial system." The author, Renee Loth, cites examples from trials in Florida, Arkansas, and Massachusetts that were compromised by jurors Googling the defendant, checking definitions of legal terms, "unearthing evidence that had been explicitly excluded," and sending Twitter messages from the courtroom. Loth says that the "problem is widespread enough that legal experts have coined the term 'Google mistrials.' No verdict has yet been overturned for texting-while-deliberating, but the retrials themselves are costly and gum up the wheels of justice." Loth points out that the Internet has made everyone an expert (think about the proliferation of medical information that has changed the relationship between doctor and patient), and people are used to seeking out information on their own. However, there is a downside to seeking out information on our own. "'The rise of digital technology has devalued expertise across the board,' observed journalist Mat[t] Bai ... Such a cultural shift has dire implications for a trial system that relies on testimony from expert witnesses" and on jurors who are expected to weigh only the evidence that is presented to them in court. Of course, nothing but her conscience prevents a juror from going home at night and researching the defendant's prior criminal history or even reading in the newspaper or online about the very case she is trying.

Wednesday, November 04, 2009

Time online reports on Maine's voters repealing gay marriage in that state. GLAD.org, the organization that has engineered most of the gay marriage legal and political efforts across New England and beyond has more information at their website.

I consider gay marriage to be a civil right issue. Consider for a moment what would have happened in 1964 if the deep south had been allowed to have voter referendums on whether they would support the Voting Rights and, and other civil rights legislation, including perhaps, the 14th Amendment.... Alabama, Mississippi, Georgia, Florida, Texas, Arkansas, Louisiana, North and South Carolina, ... all the states of the old Confederacy -- AT LEAST, would have repealed those pieces of legislation and the Constitution. Possibly, many states in the North, as well, would have repealed some pieces of civil rights laws.

Would we have mixed marriage? Would we have integrated schools or even buses where people of color may ride in the front of the bus? Would black people be welcome in restaurants or be able to drink from water fountains where whites drink, even now? Would the Reverend Martin Luther King even have found a toe hold for any of his work in that world? I do not think so!

If you allow the majority to rule in the matter of civil rights, the minority will NEVER be granted their rights.

And that is why you DO NOT have voter referendums on civil rights matters.

And that is why we SHOULD NOT have voter referendums on the matter of gay marriage.

Tuesday, November 03, 2009

The New York Law Journal, in an excellent (and free!) article discusses an en banc decision by the Second Circuit Court of Appeals about the extraordinary rendition of a Canadian citizen in 2002. Mark Fass writes

The 7-4 majority held that the Canadian, Maher Arar, failed to state a claim under the Torture Victim Protection Act and that his remaining claims did not satisfy the test for "implied" constitutional causes of action under the 1971 U.S. Supreme Court decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388.

"Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government," Chief Judge Dennis G. Jacobs wrote in his 59-page majority opinion.

"Rather, we conclude that, when a case presents the intractable 'special factors' apparent here. . . it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress—and not for us as judges—to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation."

In a statement yesterday, David Cole, the Georgetown University Law Center professor who argued Mr. Arar's appeal in cooperation with the Center for Constitutional Rights, said the ruling "effectively places executive officials above the law."

"This decision says that U.S. officials can intentionally send a man to be tortured abroad, bar him from any access to the courts while doing so, and then avoid any legal accountability thereafter," he said. "It effectively places executive officials above the law, even when accused of a conscious conspiracy to torture."

The facts of the case were laid out in great detail in the New Yorker story in February 14, 2005, 'Outsourcing Torture, the secret history of America's "extraordinary rendition" program,' by Jane Mayer. The case is officially styled Arar v. Ashcroft, and the documents are posted at Center for Constitutional Rights here, along with a description of the case and links to videos from CNN, CSpan, YouTube, audio from NPR and links to articles from the New York Times. There is also a nice timeline which simplifies the story, which can be confusing in the more emotionally fraught full stories.

The decision from the Court of Appeals is posted here as a single PDF document, but there is a majority opinion, and then a series of separate opinions and dissents totally 124 pages, according to the New York Law Journal. Be sure to watch for Guido Calabresi's dissent:

"In its utter subservience to the executive branch, its distortion of Bivens doctrine, its unrealistic pleading standards, its misunderstanding of the [Torture Victim Protection Act] and of §1983, as well as in its persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion goes seriously astray," Judge Calabresi wrote. "It does so, moreover, with the result that a person—whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law—is effectively left without a U.S. remedy." (snip)

"[B]ecause I believe that when the history of this distinguished court is written, today's majority decision will be viewed with dismay, I add a few words of my own, 'more in sorrow than in anger,'" he wrote, quoting Act I, Scene 2, of "Hamlet."

"[The majority] has engaged in what properly can be described as extraordinary judicial activism. It has violated long-standing canons of restraint that properly must guide courts when they face complex and searing questions that involve potentially fundamental constitutional rights. It has reached out to decide an issue that should not have been resolved at this stage of Arar's case."

Mr. Arar released a statement through the Center for Constitutional Rights.

"After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch," Mr. Arar said. "Unfortunately, this recent decision and decisions taken on other similar cases, prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law."

(quote from the New York Law Journal article). Check here for the press release from the Center for Constitutional Rights, which is representing Mr. Arar.

Image of Mr. Arar is from the BBC News website reporting here on the U.S. court rejecting Mr. Arar's claim.

I had the pleasure of serving as the library liaison to Professor Elizabeth Warren when I worked at the University of Pennsylvania Law School. She has since moved on to Harvard Law School, where she specializes in commercial law and bankruptcy law. Her treatises on bankruptcy have been very influential, drawing as they do on empirical methods to paint vivid portraits of real people caught in the web of debt. Threee of the best known are As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America, The Fragile Middle Class: Americans in Debt, and The Two-Income Trap: Why Middle-Class Mothers and Fathers Are Going Broke. Through her scholarship, she has helped to change the image of debtors, sometimes characterized as wastrels and spendthrifts, to that of victims of predatory lending practices. During the current debate over health care reform, one of the themes has been the number of people who have declared bankruptcy because of medical debt caused by lack of health insurance. Professor Warren has been instrumental in bringing this issue to the forefront of the debate.

She is the subject of an entertaining article in today's Boston Globe. Professor Warren came from a family that struggled after a series of financial reversals. Both of her parents worked, but things were always difficult for them. This experience helps her to empathize with other families that are struggling despite hard work. She has proposed a new federal agency, the Consumer Financial Protection Agency, which is the subject of a bill, H.R. 3126, that was introduced on July 8 by Representative Barney Frank. It passed the House Financial Services Committee on October 29, but faces opposition in the full House and Senate. If approved, the new agency would regulate consumer financial products, and is vehemently opposed by business groups. Some in the business community accuse Professor Warren of positioning herself to be the director of the agency if it comes into being, but she feels any such discussion is "premature." In the meantime, she continues to teach and to serve as TARP overseer.

A cogent review of the Kindle reader was published in today's Inside Higher Education. Written by Alex Golub, who teaches at the University of Hawaii at Manoa, the review discusses whether Kindle is appropriate for use by academics. He concludes that Kindle's current design is best suited to pleasure reading and not to reading of academic texts--"the Kindle makes moving back and forth between endnotes, body text, and bibliographic material a tremendous pain--a key concern for scholars who read by moving through the main text of a book and its scholarly apparatus simultaneously." It is also difficult, if not impossible, to mark up the text on the Kindle, something that many academics do while reading print texts. Golub concludes that Kindle and its competitors "are not ready for prime time yet, [but] they are stil great places to outsource our pleasure reading and reference libraries. And soon they might be good for even more." I like the tone of this review--it is evenhanded and balanced.

Monday, November 02, 2009

I have spent a couple decades by now teaching legal research. I started with the optimistic idea that I could just pour the information into students' heads. Well, not quite that naive, but nearly. Early on, we lectured, and then gave our students worksheets, and reading assignments to introduce them to the various research tools. But over the years, I began to feel that the lecture was really not doing much, and the worksheets were where the learning (if any) was happening. I thought back to my own days as a library school student. The bibliography classes were hugely time- consuming, but we really learned how to understand all those different tools, how to teach ourselves new resources in the future, and how to evaluate and choose them, too. I thought, that is what I think the law students really need. Nearly anything I teach them NOW will be different by the time they graduate. So, I went to work on creating a bunch of worksheets that showed the law students how to look under the hood at various types of legal research tools.

Then, I spent the next decade or so scaling them back... Ahem. Those bibliography classes WERE very time-consuming after all. I do read all the comments on my student evaluations, and take them very seriously. I was practically killing my students. So, after continual tinkering, I have seriously stream-lined the worksheets, but the core of the class is basically the same... For most of the classes, the students have a worksheet to complete beforehand. They have a reading assignment that will help them understand what is going on, if the resources are strange. Then, the class is mostly spent discussing what they found and how they found it, and what they thought about what their experience was. I don't really care WHAT they find, so much as HOW they find it, and there are a LOT of different ways to find things. The discussion is the whole thing. What they liked, and didn't like. What worked and what didn't .... And why do they think it didn't.

In WDSLS, Willingham makes a number of points useful to classroom teachers at all levels, from kindergarten through college and post-graduate levels. The book is easy to read, and moderately entertaining, and the points are easy to pull out of the text, laid out in special fonts and boxes. There are entertaining illustrations and puzzles to help make his points. But I did not really catch fire, feeling that I saw a strong connection between this book and my own thinking about the problems of teaching legal research, until about two thirds of the way through.

Suddenly, at page 104, Willingham is talking about the difference between experts and novices:

... transfer [of previous learning to new situations] is so difficult because novices tend to focus on surface features [that is the surface difference between problems] and are not very good at seeing the abstract, functional relationships among problems that are key to solving them [that is, seeing the abstract similarities that make problems analogous, so one can transfer the solution of a previous problem to the new problem]. Well that is what experts are great at. They have representations of problems and situations in their long-term memories and those representations are abstract. That's why experts are able to ignore unimportant details and home in on useful information; thinking functionally makes it obvious what's important. That's also why they show good transfer to new problems. New problems differ in surface structure, but experts recognize the deep, abstract structure. That's also why their judgments usually are sensible, even if they are not quite right.

This is what lawyers and librarians mean when they say, "You get a feel for the shape of the law." They mean that after you do enough legal research, you begin to see the underlying similarities that let you solve the research problem by recognizing the abstract, functional relationship to previous research problems you have solved, which may look on the surface like very different problems. And you can very quickly guess where the answer will lie, and look for it much more efficiently. But it has never been something I could articulate for students any more clearly than the little quip about knowing the shape of the law.

And I now have a way to articulate for my students what I am trying to do with the classroom discussions. If they will discuss and argue about what they find, not to show me or get my approval, but to explain to themselves and help themselves see what they know and how they came to know it, they will be stepping much farther along the path toward making themselves into experts. They will be taking the time they spent on the worksheets and supercharging it, by making it into a much richer experience.